Judgement
JAGANMOHAN REDDY, J. : -
The petitioner was a typist in the Medical Department of the erstwhile Hyderabad Government having entered service on the 9th Meher, 1345F. (15th August, 1936) as a Daftari and later promoted on the 3rd Mehar, 1353F. (9th August, 1944) as a typist. He was dismissed from service by the order of the Government, dated 31-8-1955 and was also suspended with retrospective effect from 9-6-1951 to 30-8-1955.
The petitioner challenges the order of dismissal and that of suspension and seeks for the issue of a writ of certiorari quashing the said order and for the issue of a writ of Mandamus directing the respondents to reinstate him without break in his service and to pay him the arrears of his salary.
2. In order to understand the background of this case, a few facts may be stated. It appears that the petitioner sought and obtained permission to avail of three holidays on the 3rd, 4th and 5th March, 1950 and proceeded to Bombay with one Ali Abbas and Abdul Qavi and some ladies. "While at Bombay on 4-3-1950, it is alleged that he assisted two ladies to emplane for Karachi and saw the other lady off in a ship bound to Karachi.
He returned to Hyderabad on the 5th. It was after this that the news of Laik Alis escape to Pakistan became known. Laik Ali who was the Prime Minister of Hyderabad State was placed under house arrest after the Police Action and an order under the Hyderabad Public Safety and Public Interest Regulation of 1358 F., was served on him by the then Inspector-General of Police on 9-12-1948. He escaped from his house on 3-3-1950.
It is in connection with this escape the petitioner along with 25 others was arrested on 13-3-1950. All the accused were being tried by the Special Judge on charges under Ss. 5 and 15 of the Hyderabad Public Safety and Public Interest Regulation read with S. 77-B of the Asafia Penal Code corresponding to S. 120-B of the Indian Penal Code. Ten of the accused in that case by their petition under Art. 228 of the Constitution challenged the validity of the detention of Laik Ali and contended that since it was unlawful, they could not be said to have abetted or attempted to abet his escape.
This contention was upheld by a Full Bench of the Hyderabad High Court in Showkat-un-nissa Begum v. State of Hyderabad, AIR 1950 Hyd 20 (FB) (A), which held that the prosecution instituted against these accused cannot stand. As a result of this decision the petitioner was released on 15-8-1950 and he joined the service the next day viz., on the 16th August. The petitioner states that his salary and allowances with retrospective effect were also paid to him.
Thereafter, on 21-4-1951, he was called by the Deputy Inspector-General of Medical Services, Dr. Pandit, and his statement was taken regarding his trip to Bombay and his movements in the city and subsequently it appears that on 9-6-1951, by an order of the Inspector-General of Medical and Health Service No. 1705/E. B. 16-7-1950, dated 9-6-1951, he was dismissed. The order is follows :
"The statement given by you is not convincing. You have not stated any reasons for going to Bombay in your leave application. You have tried to deceive the Government by not stating the reasons.
In these circumstances and taking into consideration your activities in Bombay you are dismissed from service with immediate effect." The petitioner put in a long representation on 7-8-1951, in which he stated that he had not made any application for leave, but had only asked for permission for availing the holidays; that he was subsequently arrested and released from jail and entertained in service thereafter; that the Court having exonerated him from all blame of any kind, the summary dismissal in the circumstances was against rules.
He, therefore, challenged the order of dismissal and also prayed for at least retiring him on proportionate pension. The Government after considering the representation for over four years served two orders on him, dated 31-8-1955 and 9-9-1955, both to the same effect. The first order states as under :
"Government has carefully considered the representation, dated 7-8-1951, made by Shri Mohammad Azam against his dismissal and praying for reinstatement. The Rajpramukh is satisfied that in the interests of the security of the State it is not expedient to give him an opportunity to show cause against his dismissal. His proceeding to Bombay during his leave, keeping Government in the dark of his intention to do so, and his activities there, render him unfit for retention in service under Government. He is accordingly dismissed from Government service with immediate effect."
The order, dated 9-9-1955, after adverting to the above order of the Medical Department, dated 31-8-1955 and the representation made by the petitioner in his petition, dated 7-8-1951, reproduces in identical terms the order of dismissal on 31-8-1955. On 13-9-1955, another order No. 7422/E. M. was passed by the Director, Medical and Health Services suspending the petitioner as from 9-6-1951 to 30-8-1955. The order is as follows :
"In accordance with the Government in the Medical and Health Department Order No. 1483/ S. M. dated 7-9-1955, sanction of the Government is accorded to the suspension of Shri Mohammed Azam, typist, Directorate, Medical and Health Department from 9-6-1951 to 30-8-1955 and to the payment of subsistance allowance, as per rules, for the period specified above."
3. As we have already stated these orders are challenged.
4. The Government in their counter stated that immediately the petitioner was arrested on 13-3-1950, he was placed under suspension : that after his discharge when he was taken on duty on 16-8-1950, he was granted full pay for the period he was under suspension.
The counter further alleges that the petitioner had in his confession made before a Magistrate cleverly concealed the name of Mir Laik Ali, that he had helped Ali Abbas in looking after the party arranging accommodation, food and travelling arrangements; that the answers given were not truthful, but only contained half-truths; that the discharge of the accused does not preclude them from initiating any departmental proceedings; that as a result of the departmental enquiry the Government was convinced that the petitioner, keeping the Government in dark went to Bombay with the specific purpose of assisting the escape of Mir Laik Ali and his party; that the Government examined the ease and action was taken under Art. 311 (2) (c) as the incidents relating to the escape of Mir Laik Ali to Pakistan could not be made the subject of departmental enquiry in the interest of security of the State, that the Rajpramukh having been satisfied that in the interest of the security of the State it was not expedient to give the petitioner such an opportunity, as that would mean disclosing the names of about 20 high personalities.
It was further stated that the petitioner had a clear notice of the charge as per memo, dated 8-5-1954, and that the decision of the Rajpramukh was not justiciable.
5. The only two questions to be considered in this writ petition are (1) whether the order of dismissal, dated 31-8-1955, is valid, and (2) whether the Government could under the rules suspend the petitioner retrospectively from 9-6-1951 to 31-8-1955.
6. With respect to the first point, the dismissal of the petitioner on 9-6-1951, was bad, because he was not given a reasonable opportunity of showing cause against the action proposed to be taken. The Government in their order of 31-8-1955, and 9-9-1955, in fact recognised the invalidity of the previous order and dismissed the petitioner acting under proviso (c) to Cl. (2) of Art. 311 which dispenses with the necessity to give a reasonable opportunity of showing cause against the action proposed to be taken with respect to a member of the services specified in Cl. (1) of Art. 311, where the President, Governor or Rajpramukh as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give that person such an opportunity.
7. Learned advocate for the petitioner states that after the representation made by the petitioner it was realised that the first order of dismissal was bad and that the Government was advised either to set that order aside and reinstate the petitioner or retire him on proportionate pension as requested by him or take action under Proviso (c) of Cl. (2) of Art. 311 of the Constitution.
He submits that the Government acting on the advice deliberately with a view to deprive the petitioner of the opportunity of showing reasonable cause acted under the aforesaid provision and hence its action is mala fide. The records of the Government produced do not appear to contain this letter giving this alleged advice, nor is there any material either in the affidavits or otherwise on the records produced from which, it can be gathered that the Government acted merely with a view to deprive the petitioner of an opportunity to show cause.
Where the action proposed to be taken against a member of the services specified in Cl. (1) of Art. 311 is under Proviso (c) of Cl. (2) of Art. 311 the satisfaction that it is not expedient in the interests of the security of the State to give that person an opportunity to show cause, is the satisfaction of the Rajpramukh. Is the satisfaction to be subjective or objective? The state of a persons mind cannot be determined by the objective test and as long as the President, Governor, or the Rajpramukh acted in good faith, their satisfaction cannot be enquired into in a Court of Law.
In the famous case of Liversidge v. Anderson, 1942 AC 206 (B), the question which the House of Lords was called upon to determine was whether the words "Secretary of State has reasonable cause to believe" occurring in Regulation 18-B of the Defence (General) Regulation made under the Defence of the Realm Act were to be given subjective meaning or to be determined by the application of the objective test.
We are not, however, concerned with the interpretation of these words though the majority except Lord Atkin accepted that it is the subjective meaning that should be given to those words and that the Courts of Law cannot enquire into the existence or non-existence of facts on which the Secretary of State had reason to believe. In considering this question their Lordships considered the meaning of the word "satisfies" occurring in several other regulations, such as in Regulation 18-B, para. (1-A) and Regulation 2-D and 18-A, para (1) and they were all unanimous in holding this to be given a subjective meaning and there can be no recourse to a Court. Lord Maugham at page 223 said :
"the Secretary of State is only required to be satisfied of something : see, for example, regulation 2-D and 18-A, para (1). In these cases it is conceded that there is no recourse to the Court provided, of course, that the Secretary of State acts in good faith."
7a. Again at pages 224-225 he observed :
"If the appellants contention on this point were correct, the same question would arise in the numerous cases where an executive order depends on the Secretary of State or some other public officer being satisfied of some fact of circumstance. It has never, I think, been suggested in such cases that the Secretary of State or public officer must prove that he was so satisfied when he made the order."
8. Lord Atkin in contrasting the words in Regulation 18-B (1) and 18-B (1-A) wherein the former words the Secretary of State has reasonable cause to believe and in the latter the Secretary of State is satisfied have been used, said at page 237 :
"Why the two different expressions should be used if they have the same "subjective" meaning no one was able to explain. I suggest that the obvious intention was to give a safeguard to the individual against arbitrary imprisonment." Lord Wright discussing the change in the language in Regulation 18-B (1) and the replacement of the word satisfied by reasonable cause to believe observed at page 271 :
"It is, as I apprehended, not contested that under this earlier form of the regulation the matter was left to the discretion of the Secretary, but it was contended that the change from if satisfied to if he has reasonable cause to believe made all the difference and converted the plenary power of the Secretary into a power the exercise of which was subject to the judgment of a Court of Law."
Lord Macmillan also likewise put a similar subjective construction on these words along with other words used in the regulation as imparting the same meaning and conferring the discretion upon the Secretary of State.
9. After the Constitution the provision relating to the satisfaction of the Central Government or the State Government in detaining a person under S. 3 of the Preventive Detention Act came in for consideration in the Supreme Court in the case of A. K. Gopalan v. State of Madras, 1950 SCR 88 : (AIR 1950 SC 27) (C).
In that case it was held unanimously that under S. 3 of Preventive Detention Act, 1950, the satisfaction of the authority was purely subjective and could not in the absence of proof of bad faith, be questioned at all and that S. 3 was not unconstitutional. In the case of State Of Bombay v. Atma Ram Sridhar Vaidya, AIR 1951 SC 157 (D), it was argued that the implied requirement that the grounds must be such as will enable the detenu to make a representation also indicates the quality or attribute of the grounds on which the order or detention may be made.
Whether the grounds satisfy the requirements of Art. 22 (5) is not left to the subjective opinion of the authority which makes the order of detention but an objective test is indicated, viz., that the grounds must be such as will enable the detenu to make a representation which quite clearly makes the matter justiciable. If the Court finds that no representation may be made on account of the vagueness of the grounds, the Court must also hold that the order made on such vague grounds cannot be sustained. Das J., as he then was, put the matter at page 170 thus :
"This involves that S. 3 (1) (a) of the Act should be read as if the words "on grounds which when, communicated to him, will enable him to make a representation such as is mentioned in S. 7 of this Act" occurred after the words "if satisfied with respect to any person" and before the words "that with a view".
If such interpretation of words be not permissible according to accepted canons of construction then it must be held that in so far as S. 3 of the Act makes an order of detention dependent on the subjective satisfaction of the authority the section is unconstitutional, being repugnant to the provisions of Art. 22 (5) and the necessary intendment thereof. The argument so formulated is attractive but on closer scrutiny will be found to be unsound." It was held unanimously by the Supreme Court that though this argument was not advanced in exactly the same form in 1950 SCR 88 : (AIR 1950 SC 27) (C), that fact makes no difference for the arguments have no force as they are founded on the assumption that the grounds on which an order may be made must be such as will, when communicated, be sufficiently full and precise so as to enable the detenu to make a representation.
As was observed the satisfaction being subjective, the Court cannot arrogate to itself the responsibility to judge the sufficiency or otherwise of the grounds. Kania C.J., at page 160 said- "The satisfaction of the Government, however, must be based on some ground. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way.
If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section.
It is not for the Court to sit in the place of the Central Government or of the State Government and try to determine if it would have come to the same conclusion as the Central or State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a Court of law."
"When the power to issue a detention order", (Observed Patanjali Sastri J.) as he then was : "has thus been made to depend upon the existence of a state of mind in the detaining authority, that is, its "satisfaction" which is purely subjective condition, so as to exclude a judicial enquiry into the sufficiency of the grounds to justify the detention, it seems to me to be wholly inconsistent with that scheme to hold that it is open to the Court to examine the sufficiency of the same grounds to enable the person detained to make a representation .............."
10. In this case the question is; are there any grounds at all upon which the Rajpramukh could have been satisfied that in the interests of the security of the State it is not expedient to give the petitioner a reasonable opportunity to show cause against the proposed action? The contention of the learned advocate for the petitioner is that there were no grounds whatever upon which the Rajapramukh could have been satisfied and that it was merely a fraud on the power.
He submits that the Government found that there was no material upon which the petitioner could have been asked to show cause why he should not be dismissed, action under proviso (c) of Art. 311 (2) was deliberate and mala fide resorted to for the reason that the Courts of law will not enquire into the question of the satisfaction of the Rajpramukh. The person alleging fraud on the power or mala fides must establish the facts upon which the Court can draw that inference.
In the affidavit there is not a word mentioned about this, nor what has been urged in the argument has been set out therein. We were also unable - to discover from the records called for any material upon which such an inference can be drawn. On the other hand we find that there are two statements of the petitioner, one taken by the Criminal Court and the other taken by the Deputy Inspector-General of Medical and Health Services in which the participation of the petitioner in the escape of Laik Ali and his activities in Bombay in helping persons to fly from the country to Pakistan was enquired into.
It also appears that statements of witnesses were recorded for the trial before the Special Sessions Judge which on a technical point had not proceeded. It is not a case where the petitioner was acquitted of the charges. But all that material which the prosecution had gathered with respect to the activities of the petitioner prejudicial to the interests of the State were, however, available upon which the Rajpramukh could be said to have been satisfied.
It is not a case where there was no material at all. The orders of dismissal clearly state that the Rajpramukh was satisfied that it was not expedient to give him an opportunity to show cause against his dismissal basing that satisfaction on the fact that he has proceeded to Bombay during his leave keeping the Government in dark and his activities in Bombay, all of which rendered him unfit for retention in Government service. We cannot, in these circumstances, enquire into the subjective state of mind behind that satisfaction.
11. Learned advocate further contends that there was no personal satisfaction of the Rajpramukh, but it was the Government who issued the order in the name of the Rajpramukh. Apart from the general presumption under Illustration (e) of S. 114 - Omnia praesumuntur rite esse acta - it is again for the petitioner to establish the allegation.
Ex facie the position under the Constitution is that under Art. 154 the executive power is vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Art. 162 provides that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.
The Governor also has powers under Art. 161 to grant pardons, reprieves, respites or remissions of punishment, etc. Such powers as are to be exercised by the Governor under the Constitution can only be exercised on the advice of the Ministers except where the Constitution expressly or by necessary implication provided that he can exercise the powers in his individual discretion as in the case of the Governor of Assam with respect to the Tribunal matters.
In Gnanamani v. Governor of Andhra, 1954-2 Mad LJ (Andh) 33 : (AIR 1954 Andhra 9) (E), one of us (Honble the Chief Justice) dealing with this aspect of the matter and after referring to the above Arts. 154, 161 and 162 observed :
"All the powers exercisable by a Governor of his office can be exercised only on the advice of the Ministers except in so far as the Constitution expressly or perhaps by necessary implication says that he can exercise those powers in his individual discretion."
It would therefore even on the facts adverted to above be unnecessary to consider the further question whether it is the personal satisfaction of the Rajpramukh or his satisfaction on the advice of the Ministers which is required under proviso (c) of Cl. (2) of Art. 311. There is therefore no force in the contention that the order of dismissal is invalid.
12. The next question relates to the order of suspension passed after dismissal and with retrospective effect. This order is challenged on the ground that no retrospective order of suspension can be made. It is clear from the facts of this case that the petitioner was only dismissed as from 31-8-1855. The prior order of dismissal being treated as invalid the petitioner in these circumstances would be deemed to be in. service. The provisions governing the suspension of a member of the service are contained in E. 17 "(d) of the Hyderabad Civil Service (Classification, Control and Appeal) Rules which is as under :
"(d) A member of a service may be placed under suspension from service pending inquiry into charges against him, where such suspension is necessary in the public interest. The period of suspension, however, shall not exceed 6 months without the previous order of Government :
Provided that in the case of members of State Service, the period of suspension may be extended beyond a total period of one year only with the sanction of His Exalted Highness the Nizam.
This rule contemplates the suspension of a member of the services pending an enquiry into the charges against him, that is, before any action is taken against him. The word suspension generally connotes temporary deprivation of office, position or of ones privilege. This being the meaning, suspension of a person retrospectively has no meaning.
The rules do not empower the authority to suspend person retrospectively nor is such power consistent with the nature of suspension. In Hemantha Kumar Bhattacharjee v. S. N. Mukherjee, ILR (1955) 2 Cal 399 : (AIR 1954 Cal 340) (F), a Bench of the Calcutta High Court consisting of Chakravarthi, C.J. and Lahiri J., considered a similar question where it was held that the power to suspend with retrospective effect was not implicit in a power of suspension : nor does any rule authorise the Government of India to make an order of suspension from service against an employee with retrospective effect.
There the appellant was holding the post of a Sub-Postmaster. On 2-9-1950 he was arrested on certain criminal charges under the provisions of the Indian Penal Code and of Prevention of Corruption Act and was placed under suspension by a letter, dated 5-9-1950, with effect from 2-9-1950 preceding when he had been arrested. In the criminal proceeding against him he was ultimately discharged on 13-10-1950, but his suspension, however, continued.
He was again resummoned on 16-1-1951, by the Chief Presidency Magistrate on the same charge as previously laid and thereafter by a. notification of the West Bengal Government, dated 1-2-1951, the case against him was allotted to the Court of a Special Judge. The appellant then moved the High Court under Art. 226 of the Constitution of India against the continuance of his suspension under the order of 5-9-1950.
The only point urged before the Bench was that no order of suspension with retrospective effect could at all be made. In considering this question referring the dictionary meaning of the word "suspension", Chakravarthi C.J., observed at page 405 (of ILR Cal) : (at p. 343 of AIR) :
"..............Thus, the basic idea underlying the root word "suspend" and all its derivatives is that a person, while holding an office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office, or holding the position or privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms.
The antecedent period which an order of suspension with retrospective effect might be intended to cover, would ordinarily be a period during which the person concerned had already performed the duties of his office, or held the relevant position. There can be no meaning in suspending a man from working during a period when the period is past and he has already worked or suspending a man from occupying a position or holding a privilege in the past when he has already occupied or held it.
If the suspending authority had the powers of a Legislature, he could undoubtedly have said that although an employee might have actually worked during an antecedent period, he would be deemed not to have worked and to have been under suspension or although a person might have actually occupied a position in the past, he would be deemed not to have occupied it and to have been bereft of the privileges attaching thereto.
But the Government of India not being a Legislature and having given itself by the rules no more power than a power to suspend, the ordinary meaning of suspension must apply to the construction of the power. Any order made must be within the limits of the power to suspend and those limits must be taken to be such as are possible under the meaning of the word "suspension". If so, an order of suspension with retrospective effect under the authority of R. 2 is impossible in the nature of things." With respect, we agree with this view. The fact that the petitioner was hot actually performing the duty from 9-6-1951 to 30-8-1955, does not in any way affect this position because it is not the petitioners fault that he did not work, because the Government did not allow him to do so during the period when the petitioner is supposed to have been dismissed. As it turned out the order of dismissal of 9-6-1951, was not only bad, but the Government also assumed it to be so.
In our view the Government not having the power to suspend the petitioner retrospectively, the order of suspension must be held to be bad. We accordingly quash the order of suspension by the issue of a writ of Certiorari and we partly allow the petition, but in the circumstances without costs.
Order accordingly.